The Counsellor's Corner

Can a police officer stop and frisk an individual based solely on a tip from an anonymous source that the person is carrying a gun? In a rare unanimous decision, the U.S. Supreme Court answered this question with a resounding No. This decision surprised many observers who had watched the Supreme Court diminish the rights of individuals over the last few years as police have continuously been given more power and more unfettered power. Earlier this year, the Supreme Court decided in a 5 to 4 decision that police can stop and frisk people merely because they flee from a police officer who is approaching.

In the present case, a Miami Police dispatcher received an anonymous tip indicating that several young African-American males were standing at a bus stop, and that the one wearing a “plaid-looking shirt” was carrying a gun. Justice Ruth Bader Ginsburg, writing for the Court, indicated that police must have “some means to test the informant’s knowledge or credibility” in order to proceed. In this matter, two Miami Police officers drove to the scene, saw several black males and, sure enough, one of them was wearing a plaid shirt. The officers then patted him down, found a gun and arrested him.

Needless to say, responses to this decision have been mixed. The General Counsel of the National Association of Police Organizations, indicated disappointment with the decision and stated his feeling that danger to the police will now be increased. Needless to say, the ACLU and other similarly-oriented groups had a different view, praising the Court for not being afraid to limit the powers of police officers. Both sides indicated surprise that the ruling was unanimous, indicating that they each thought Justice Rehnquist and Justice Thomas would vote in favor of law enforcement as they usually do.

I believe that whenever there is a unanimous verdict, it is for a reason, and in this case I believe the purpose is to send a clear message to law enforcement officers.

In her opinion, Justice Ginsburg acknowledged the fact that the Supreme Court had twice before upheld searches based on anonymous tips. There are differences between those two cases and this one. In one, known as the Adams case, the tip was from a known informant whose credibility had been assessed, and in the other, the White case, the police were able to confirm the veracity of the tip before searching. Justice Ginsburg contrasted those to this case in which the only information the officers had was “the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had the information.” The police department had asked the court to create what would have been known as a “firearm exception” to search and seizure law, however the nine justices “shot this down” as well. Justice Ginsburg appropriately stated that to create a firearm exception would allow open season for the harassment of individuals based on false and/or unreliable tips.

What do you think of the Court’s ruling? I like it a lot. Of course, we all want safe streets and we want citizens and police officers alike to be able to travel safely; however, there needs to be a balance between the rights of the police officer and the rights of the individual. While an Orwellian world with “Big Brother” watching us would certainly be a safer one, it would be a world without freedom. The right to be left alone, the right to have privacy, is one that of necessity increases the danger to all people; however, it is an extremely important right that requires constitutional protection. The fact that the court voted nine to zero in this case is a clear indication that the Court had absolutely no difficulty in drawing the line here. We don’t want to live in a society where police officers can search people randomly based on little information. It would make it very easy for one person who is upset with another to have that person searched by police officers if all it took was an anonymous phone call. Safety is important, but those of us who live in this country generally choose to live here because they don’t want to live in a communist country or a dictatorship or any other venue in which personal liberty is compromised too much. There certainly will be situations in which the Courts will decide that police had enough information to do the search but the Court had no difficulty in deciding that this case wasn’t one of them.

Dr. Charles J. Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Growth. Mr. Unger writes a bimonthly column on legal and psychological issues.